Hamish Lean

Most agricultural leases reserve the sporting rights over the let farm to the landlord. There can be a great deal of friction caused by the competing interests of the landlord’s sporting rights and the agricultural tenant’s farming activities. Sometimes these can be exacerbated if the landlord has let out the sporting to a shooting tenant.

The Tenant Farming Commissioner has published guidance about how the sporting and agricultural interests can be balanced.

A certain amount of inconvenience is inevitable and in many cases relationships are quite harmonious, governed by mutual trust and respect.

However, it has long been a bone of contention on the part of tenants that existing compensation rights and protections in relation to damage caused by game are inadequate when the damage and disturbance goes beyond what might normally be expected and tolerated.

The Land Reform Bill, currently before the Scottish Parliament, includes a number of reforms in relation to agricultural tenancy law. One of the reforms is in relation to compensation for game damage.

The new provisions expand on the tenant’s existing rights to compensation so that the tenant is entitled to be compensated by the landlord where game or game management have caused the tenant to sustain damage to crops, damage to trees grown for agriculture or permitted non-agricultural purposes, damage to fixed equipment, damage to livestock and damage to habitats.

Written notice must be given by the tenant to the landlord in a form to be prescribed as soon as reasonably practicable so that the landlord is allowed a reasonable opportunity to inspect the damage.

This will not apply when livestock have had to be destroyed to prevent suffering or injury or spread of disease.

The new rules also provide that where the right to kill game is held by some person other than the landlord, for example, a sporting tenant, a landlord is entitled to be indemnified by that other person against claims for compensation.

There is no limit on the amount of compensation that might be claimed but a tenant will have to be able to demonstrate actual loss suffered and that the amount of the claim is reasonable.

Ultimately if there is no agreement on the value of the claim, the amount of compensation is to be determined by the Land Court.

The new rules apply to “game management” so that the conduct of shoots, for example, scaring livestock unnecessarily, will be something which might generate a compensation claim, as might laying down thousands of pheasant poults in woodland adjacent to arable land where that leads directly to loss of crop.

These new rules will be welcomed by agricultural tenants suffering disproportionately from the unreasonable exercise of sporting rights.

Hamish Lean is a partner at Shepherd and Wedderburn. This article first appeared in The Press and Journal.